Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF149752. Rafael A. Arreloa, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant Dana Leon Coleman is serving four years in prison after a jury convicted him of three counts of burglary (Pen. Code, § 459) and one count of misdemeanor possessing burglary tools (§ 466). In this appeal, defendant contends: 1) the trial court failed to correctly instruct the jury on the lesser included offense of attempted burglary; 2) the trial court allowed improper expert testimony; and 3) the trial court failed to exercise its discretion when it declined to strike a prior conviction for purposes of custody credits under section 4019. As discussed below we reject each of these arguments and affirm the conviction and sentence.
All section references are to the Penal Code unless otherwise indicated.
Facts and Procedure
On the evening of April 25, 2009, a witness was taking a smoke break outside his place of employment. The witness heard an alarm go off on a dark colored sedan, with its lights flashing, in the adjacent parking lot and observed a man tripping over some hedges coming away from the sedan. The man “looked very suspicious, looked around, like, behind him.... So I got on the horn and called dispatch [911]. And pretty much, from that point on, just walked him through the whole situation.... [¶]... [¶] So from that point, I just watch him, you know, continue on.” The man was wearing a striped shirt, jeans, and white shoes. The witness watched the man walk over to a white car and get into the car, “kind of messing with things, opened up the back driver’s side door.... [He] [g]et’s inside, kind of looks around for a bit, gets out.” When the man saw people approaching through the parking lot, he went to the front of the white car and crouched down. The man waited for the people to pass and went over to a Toyota truck with a tool box in back and stood in front of it for a while before getting inside the truck.
The police arrived and initially went over to a man who was sitting or sleeping on a park bench. However, the 911 dispatcher, who was still talking to the witness, redirected the officers to the Toyota truck where the man was. As the officers came toward the truck, the man looked like he was crouching or lying down trying to hide. The witness confirmed that the man he was watching never went near the park or the park bench, and that he was sure the man the officers arrested in the Toyota truck was the man he had watched walk from the dark sedan with the alarm going off to the white car to the Toyota truck.
When speaking with the 911 dispatcher, the witness was not sure whether the man he was watching was African-American or Latino, but when the responding officers shined a light on defendant, “I was able to see it’s the same face.”
Police officer Quinn testified that he was one of the first two responding officers. He inspected the white car and found that the window on driver’s side rear door had been broken inwards into the back seat of the car. The glove compartment was open and several charging cords were lying on the passenger floor board.
Officer Quinn also inspected the dark sedan that the witness had pointed out and found that the window on the passenger’s side rear door had been broken inwards. A similar attempt appeared to have had been made to break a rear window of the car next to the dark sedan, but there was only a small, nickel-sized hole in the glass. This was consistent with someone using a screwdriver to punch a hole in the window.
Officer Quinn testified that the witness spoke as if he was sure the man he had watched was the man the officers arrested, and that the witness did not appear to have any doubt as to this identification. The police did not dust any of the cars for fingerprints. A FasTrak transponder was missing from one of the vehicles, but it was never found, even after a search of defendant’s person and his vehicle.
Police officer Glover was the other officer who initially responded to the scene. Glover first saw defendant in the Toyota truck reclining in the driver’s seat. The truck belonged to defendant. Glover searched the truck and found a screwdriver on the front seat “within arm’s reach” of defendant. Glover testified that in the 65 or more investigations he had conducted of vehicle burglaries, a screwdriver had been used in about half. The prosecutor asked Glover whether, based on his experience and training, he had an opinion “as to whether this screwdriver could have been used to break into the three cars that were previously shown?” Glover replied, “Based on my training, experience, knowledge of criminal activity, this screwdriver was indeed used to break those windows.” Defense counsel objected based on speculation and lack of foundation. The trial court upheld the objection based on lack of foundation “as to whether or not this was the particular one that was used” and directed the prosecutor to lay a further foundation.
The prosecutor then asked Glover to describe how on previous cases he had looked for glass transfer onto the instrument used to break into vehicles. Glover explained that small fragments of glass adhere to the instrument “due to the magnetic force that it does have and the nature of the tool, will stick to it until you wipe them off or clean them off.” Glover stated that the screwdriver he recovered from defendant’s Toyota truck had such slivers of glass on it, and pointed out the reflections made by those glass slivers in photographs of this screwdriver presented by the prosecutor. Glover then testified that, based on his training and experience, the screwdriver found in defendant’s truck was used to break into the vehicles in the parking lot. Defense counsel made no objection.
At the end of the day on November 30, 2009, both parties gave their closing arguments and the trial court instructed the jury. On December 1, 2009, the jury found defendant guilty on three burglary charges, acquitted him of receiving stolen property, and found him guilty of possessing burglary tools. On December 30, 2009, after denying defendant’s motion to dismiss a prior strike conviction, the trial court sentenced defendant to four years on each burglary charge, and 180 days on the burglary tools charge, all to be served concurrently. This appeal followed.
Discussion
1. Was the Jury Properly Instructed on Attempted Auto Burglary?
The judge misspoke when it orally instructed the jury on the lesser included offense of attempted auto burglary.
“The Defendant is charged in Count I, II, and III with a lesser included offense of auto burglary [should say “attempted auto burglary”]. To prove that the Defendant is guilty of this crime, the People must prove that, 1: The defendant took a direct but an effective [should say “direct but ineffective”] step toward committing an auto burglary, and 2: That the Defendant intended to commit an auto burglary. A direct step requires more than merely planning or preparing to commit auto burglary or obtaining or arranging you for something needed to commit auto burglary.
Defendant contends this so confused the jury that it could not tell the difference between auto burglary and attempted auto burglary. However, as the People point out, the erroneous reading was harmless. This is because the jury received the correct instruction in written form and it is presumed to have been guided by the written instruction. (People v. Box (2000) 23 Cal.4th 1153, 1212 (overruled on another point by P v. Martinez (2010) 47 Cal.4th 911, 949, fn. 10); People v. Osband (1996) 13 Cal.4th 622, 687; People v. Garceau (1993) 6 Cal.4th 140, 189-190.) Therefore, any error was harmless.
2. Was Officer Glover’s Testimony Regarding the Screwdriver Improper?
Defendant next argues that, “[o]ver [defendant’s] objection, the trial court allowed testimony by Officer Glover in his opinion the screwdriver found in appellant’s truck was the tool used to break the window in each of the three vehicles. This expert ‘opinion’ constituted improper evidence on the ultimate issue in the case.”
We agree with the People that defendant has waived his claim on appeal. Defendant initially objected to the admission of Officer Glover’s opinion based on “speculation, lack of foundation” and the trial court found that “as to whether or not this was the particular [screwdriver] that was used..., Counsel needs to lay a further foundation.” The prosecution proceeded to lay the foundation for Officer Glover’s opinion by showing a photograph of the screwdriver and asking him about the glass on the tip of the screwdriver. Officer Glover then expressed the opinion that “that screwdriver was used to break those three windows.” Defendant never objected that the opinion constituted improper evidence on the ultimate issue on the case, nor did he object at all when Officer Glover expressed the opinion after the prosecutor laid a further foundation in response to defendant’s first objection. “[E]rror in admitting evidence may not be the basis for reversing a judgment or setting aside a verdict unless ‘an objection to or a motion to exclude or to strike the evidence... was timely made and so stated as to make clear the specific ground of the objection or motion....’ [Citation.] ‘In accordance with this statute, we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. [Citations.]’ [Citation.] Although no ‘particular form of objection’ is required, the objection must ‘fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 354.) Hence, by failing to notify the trial court of his objection to Officer Glover’s expert opinion evidence on the basis that it constituted improper evidence on the ultimate issue in the case, defendant has waived the claim on appeal.
3. Section 4019
Defendant argues the case should be remanded so the trial court may exercise its discretion to decide whether his prior strike conviction should be considered for purposes of calculating his sentencing credits under section 4019. We disagree because section 4019 was not in effect at the time defendant was in custody awaiting trial, nor on the dates of conviction (December 1, 2009) or sentencing (December 30, 2009).
When defendant was in custody in 2009, under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019; People v. Duff (2010) 50 Cal.4th 787, 793.) However, the Legislature amended section 4019 effective January 25, 2010, to provide for the accrual of two days of conduct credit for every two days of presentence custody (§ 4019, subd. (f)) for any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c). The statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (§ 4019.) Section 3 of the Penal Code provides that the Penal Code shall not have retroactive effect unless expressly so declared. Thus, “‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.)
The Supreme Court in In re Estrada (1965) 63 Cal.2d 740 (Estrada) created an exception to the section 3 presumption of prospective application. In Estrada, the court considered whether a statute mitigating punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute. The statute was silent as to retroactive application. (Estrada at p. 744.) According to Estrada, a statutory amendment reducing punishment for a crime or changing procedure in favor of a defendant should be given retroactive effect as to cases that have not reached final judgment. (Id. at pp. 744-745.) In reaching its holding, the Estrada court explained: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745.) Thus, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) Relying on Estrada in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [Fourth Dist., Div. Two], we held that amendments to section 2900.5, providing credit for section 4019 conduct credits, were retroactive. This holding was based on the premise that there is no legal distinction between decreasing the maximum sentence for a crime and increasing presentence credits because both mitigate punishment. Despite numerous cases applying Estrada, the California Supreme Court has not held that increases to the custody credit scheme constitute mitigation of punishment. Rather, our Supreme Court has consistently characterized the custody credit scheme as a means of encouraging and rewarding behavior. (See People v. Brown (2004) 33 Cal.4th 382, 405 (Brown).)
We thus conclude the Estrada exception to prospective application of a new or amended statute does not apply, and there is no presumptive retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman).)
In sum, pending resolution of the issue by our Supreme Court, we adopt the reasoning of the authorities that have concluded that the amendment to section 4019 applies prospectively. Thus, the trial court did not fail to exercise its discretion with respect to striking defendant’s prior conviction for purposes of section 4019.
Disposition
The conviction and sentence are affirmed.
We concur: McKINSTER J., KING J.